As Waukesha Water Diversion Application Moves Forward - Is Great Lakes Compact Up to the Test?

The City of Waukesha hopes to draw from Lake Michigan to provide residents with clean reliable water.

As Waukesha holds its first public meeting on a revised request to purchase Lake Michigan water, an environmental expert shares concern that the Great Lakes Compact may contain holes in its protective armor.

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Waukesha’s underground source of water is dwindling, and increasingly concentrated with cancer-causing radium. Planners feel the best option is to purchase lake water from Oak Creek’s utility and then return it via the Root River.

In order to pump Lake Michigan water outside its basin – which the plan would do, communities are supposed to meet the standards the Great Lakes Compact sets. It’s an agreement among all the states bordering the lakes.

Nick Schroeck started following the Great Lakes Compact as a student at Wayne State University.

“ Even before the Compact was ratified – 2006 – 2007 I was finishing up law school. And then I was with the Great Lakes Commission as a fellow when the Compact passed through some of the state legislatures and I was helping write briefing papers on it. “

Today Shroek teaches environmental law at Wayne State.

From his perch near Lake Erie, he’s been tracking the debate over Waukesha’s interest in using Lake Michigan water.

Shroek praises the Compact as a galvanizing force to protect 21 percent of the world’s fresh water, yet he perceives “shortcomings”.

"I don’t know if I would characterize it as holes... but basically....."

Schroek says in order to build consensus among eight very different states, they kept the Compact’s language broad and left quite a bit of authority in state hands.

“States like Wisconsin or Indiana have different concerns about Great Lakes than Michigan or New York, right?”

One of the few demands the Compact made of them…

“To pass their own state laws to implement it. So Michigan for example, passed a series of laws called the Michigan Water Withdrawal Act and that law basically said if you’re going to pump 100,000 gallons of water out of the ground, you’re going to have to get a permit.”

The Compact also created a governing body – the Great Lakes-St. Lawrence River Basin Water Resources Council. It’s composed of all eight governors and an alternate for each.

“Typically the governors appoint folks that are the head of their water resource division or their DNR.”

The Council can create rules to carry out its mission of protecting the Great Lakes. But, so far - Schroek says it has written none.

“They’ve passed some “guidance language” within the Council, but they don’t really have point by point this is how we’re going to evaluate a diversion proposal.”

Nor is public comment built into the Council’s decision-making process. So all Schroek and other interested parties can do, is listen in to the Council’s conference call meetings.

“You can’t asked questions over the conference call. There’s been some rumblings about the openness and the access to the council from the public. Again, if if they had formal rules and procedures in place for public engagement and public notice and comment, I think that would alleviate some of those concerns.”

Schroek believes the sum of the Compact’s missing pieces could prove debilitating.

"What happens if the Compact Council decides to deny Waukesha’s request, and then Waukesha says “ok we’re going to go to federal court and we’re going to sue you over this denial?”

Schroek says without policies on the books, the Council could lack legal footing.

Asked why the Council didn’t set up a review structure in order to prepare for its first diversion application, Schroek responds:

“I think the first question is does the Compact Council have the resources that they need to actually effectively evaluate these proposals and that comes down to funding”

The Great Lakes states fund the Council

“When you ask people across the region about the Compact, overwhelming support – people say it’s a good thing, we want to protect our water. But when it comes to actually funding the work.....”

Schroek searches for the words. He eventually comes up with, ‘we’re failing.’